Reliance Leasing Pty Ltd v Smith [2022] NSWDC 505

Reliance Leasing Pty Ltd v Smith [2022] NSWDC 505

Leave was granted because Mr Smith provided a satisfactory explanation for the delay, his first affidavit gave some factual foundation for the proposed cross claim, the proposed relief related to or was connected with the subject of the existing proceedings, Reliance showed no actual or presumptive prejudice from late filing, defects concerning accounts/equitable relief and references to related bodies corporate or associated entities could be addressed by the amendments accepted by counsel, and requiring separate proceedings would incur unnecessary costs where any such proceedings would likely be heard with the existing proceedings.

Jurisdiction
Australia
Judgment Date
27 October 2022
Procedural Posture
Civil Procedure Application for Leave to File a Cross Claim Out of Time / Notice of Motion Filed on 26 August 2022
Outcome
Leave granted to the defendant to file a cross claim, subject to specified amendments; leave granted for the parties to approach the Associate for a further hearing on costs of the Notice of Motion.
Legal Topics
['leave to File Cross Claim Out of Time' 'late Joinder' 'prejudice' 'explanation for Delay' 'cross Claim Against Third Party' 'connection With Subject of First Proceedings']
['civil Procedure' 'pleadings'] ['leave to File Cross Claim Out of Time' 'late Joinder' 'prejudice' 'explanation for Delay' 'cross Claim Against Third Party' 'connection With Subject of First Proceedings']

Case Brief

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Procedural Posture

Civil Procedure Application for Leave to File a Cross Claim Out of Time / Notice of Motion Filed on 26 August 2022

Legal Issues

  1. 1 ['Whether the defendant should be granted leave under r 9.1 of the Uniform Civil Procedure Rules 2005 (NSW) to file a cross claim out of time.' 'Whether relief sought against Mr Steinberg, who was not a plaintiff in the first proceedings, relates to, or is connected with, the subject of the first proceedings under s 22 of the Civil Procedure Act 2005 (NSW).' 'Whether the defendant provided an adequate explanation for not filing the cross claim within time and for the delay in bringing the application.' 'Whether late joinder and filing of the proposed cross claim would cause prejudice to the plaintiff or proposed cross defendants.' 'Whether separate proceedings should be required instead of allowing the cross claim.']

Ratio Decidendi

Leave was granted because Mr Smith provided a satisfactory explanation for the delay, his first affidavit gave some factual foundation for the proposed cross claim, the proposed relief related to or was connected with the subject of the existing proceedings, Reliance showed no actual or presumptive prejudice from late filing, defects concerning accounts/equitable relief and references to related bodies corporate or associated entities could be addressed by the amendments accepted by counsel, and requiring separate proceedings would incur unnecessary costs where any such proceedings would likely be heard with the existing proceedings.

Court Disposition

Leave granted to the defendant to file a cross claim, subject to specified amendments; leave granted for the parties to approach the Associate for a further hearing on costs of the Notice of Motion.

Orders

  • ['Grant leave to the defendant to file a cross claim in the form of PX 1, pp 389-401, subject to the following: Paragraph 2 of the "Relief Claimed" shall be deleted; the words "as being just and equitable" in paragraph 3 of the Relief Claimed shall be deleted; the words "and/or his related bodies corporate" in...